AG advises Govt to award N$100m job to his friend

CONTROVERSY surrounds Attorney General, Sakeus Shanghala’s decision to offer legal opinion to the Tender Board in favour of Namib Rail a joint venture between D&M Rail Construction (Pty) Ltd a company co-owned by his former business partner, James Hatuikulipi at Hanganeni Investments despite a High Court decision in March that nullified the awarding of the N$100 million contract to Namib Rail.
Shanghala, Hatuikulipi and Leevi Hungamo, the current P e r m a n e n t Secretary at the National Planning Commission used to be co-directors in Hanganeni Investments before some of the members claimed they had stepped down from the company.
Sources close to the matter allege that there was clear conflict of interest on Shanghala’s part and he should have recused himself from the matter.
According to a letter in Confidente’s possession, Shanghala on May 6 wrote to the Ministry of Finance’s Permanent Secretary Ericah Shafudah endorsing an opinion given by Hafeni Hamunyela a lawyer in his office recommending that Namib Rail gets the tender.
“I totally agree with the opinion sought by my office and as such endorse it as the opinion of the Attorney-General to client, id est, the Tender Board of Namibia. The court referred the matter back for adjudication by the Tender Board. My view, is that the GRN should never be in a position to pay more for services, simply because those that set up the tender specifications, seemed to have done so to preclude providers that can deliver a product (ballast) cheaper than the rest because they are in possession of transport facilities which are not costed to the client (because Namib Rail is a JV between Transnamib and D&M Rail Construction (Pty) Ltd, rail transport on their line is cheaper if not rendered for third parties neither can rules be applied rigidly- the envelope tender rule of 15 percent.
“Save for the chapeau of paragraph 19 of the opinion, whilst I endorse the rest of the paragraph, I do opine that on the basis of the analysis in the opinion, the Tender Board should appoint Namib Rail for the tender, if it is true that their price is cheaper by virtue of their competitive advantage. GRN should not pay more than it ought to under any circumstances, all factors considered as in this case,” Shanghala said. According to a recent report in The Namibian, the Tender Board has allegedly been trying to
The daily also reported that: “Despite having conceded in the High Court that Namibia Rail Construction failed to meet some of the basic requirements and they should thus not have been awarded the contract, the Government has since been rewriting the rules to suit Namibia Rail Construction in the N$94 million tender to supply ballast to rehabilitate the railway line between Tsumeb in the North and Kranzberg in the mid-west of Namibia.
“The Government conceded during the court case that Namibia Rail Construction (Namib Rail) failed to comply with several strict requirements by submitting incomplete tender documents, as well as leaving blank spaces, while the rules stipulate that they must be filled in, and also by quoting 61% below the estimated cost, a rule of thumb which often leads to disqualification.”
Efforts to get comment from Shanghala were fruitless as questions emailed to him had not been responded to at the time of going to print.
Hatuikulipi was also unavailable for comment while Shafudah referred Confidente to Helena Kapenda, Secretary to the Tender Board who had not responded to an inquiry sent to her at the time of going to print.